Theoretical Reflection On The Premise Of Criminal Law Intervention

The development of criminal law is inseparable from the discussion of social issues,and the formulation and implementation of China’s eleven criminal law amendments not only expand the scope of crime,but also affect the development of the criminal law system itself.Whether it is the protection of new legal interests or the pre-intervention of existing legal interests,the motives can be found in the formation of risk society and changes in moral standards outside the criminal law normative system,and the protection of legal interests shows that the emphasis is from "result infringement" to"risk prevention",the instrumentality of criminal law is enhanced,and more and more dangerous behaviors are included in the scope of criminal law.In order to respond to the needs of social governance and effectively resolve the risk of infringement of legal interests,the prepositioning of criminal law intervention seems to provide a feasible solution,but there are also a series of doubts and concerns such as squeezing the space for citizens’ freedom of behavior,deepening the negative effects of criminalization,ambiguous laws,difficult to identify legal benefits,and system imbalance.To conform to the trend of criminal law intervention in the forefront,it is not due to its willful growth and galloping all the way on the road of criminalization,but to rationally and prudently look at this legal phenomenon,objectively analyze internal and external difficulties,and under the premise of taking the Constitution as the rule,make constitutional interpretations of the concept of legal interests and criminal law provisions,give play to the functional constraints of legal benefit protection and human rights protection,supplemented by the principle of proportionality,explore the establishment of a criminal law system for misdemeanors and minor sentences,let the criminal law intervention pre-construction within a reasonable scope,and realize the identification of crimes on the edge of criminal law.This article is divided into four parts.The first part,an overview of the pre-intervention of criminal law.Under the premise of clarifying the background of criminal law intervention preposition,the theoretical definition and semantic division of"intervention preposition" are carried out,and according to the different degrees of threat to legal interests caused by social risks,three types of legislative manifestations can be specifically divided:first,the newly born criminal law legal interests are violated or threatened,such as human genetic security;Second,the former positive legal interests have been upgraded to criminal law benefits,and the original legal interests that have been infringed but have not yet been paid attention to are gradually realized by people,that is,the potential major legal interests have begun to become apparent,such as impersonating others to obtain higher education enrollment,civil service recruitment,and job placement treatment qualifications;Third,the new behavior has caused a variety of infringements or increased risks to the existing criminal law interests,that is,on the basis of the existing protection,more infringements are included in the scope of criminal punishment,such as high-altitude throwing behavior.At the same time,it shows the focus of controversy in academic circles on the phenomenon of prepositioning criminal law intervention.The second part is the theoretical basis of criminal law intervention in preposition.The development of criminal law intervention has not departed from the traditional theoretical basis in essence,first of all,the social background of risk,man-made uncertainties make the game between risk and legal interests more and more anxious,and huge destructive risks prompt people to trust criminal law and seek effective governance of criminal law;The second is the perspective of moral needs,where the improvement of moral standards and the reduction of moral behavior are externalized into more crimes;The third is to actively prevent the establishment of a criminal law concept,so that the criminal law can change the image of severe punishment,focus on behavioral criticism and risk prevention,and enhance the public’s legal awareness and legal recognition from the inside and outside;Finally,with the support of the concept of legal benefit,criminal law intervenes in the pre-emptive reflection,and returns the issue of punishment justification to the discussion of the nature of crime,and the legal benefit protection provides a justification basis for criminal law punishment and builds a theoretical basis for the development of pre-intervention legislation.The third part is to reflect on the issue of criminal law intervention in the preposition.On the one hand,the expansion of crime is not conducive to the establishment of the seriousness of criminal law,further increasing the judicial burden,restricting personal development,affecting social stability and other negative social impacts;on the other hand,it brings about increasingly blurred criminalization standards,weakened practical value of legal provisions,difficulties in attribution and punishment caused by the lack of legal benefits,increased symbolism and instrumentality of criminal law,and systematic disorder of criminal law.The fourth part,Criminal Law Intervenes in the Rational Development Path of Foreclosure.In the context of social risk in the new era,the pre-intervention of criminal law is a trend and a possible answer,and how to effectively release preventive capabilities within reasonable limits and develop this legislative phenomenon with the trend has become the key.First,it is necessary to adhere to the concept of legal benefits and the constitutionality of criminal law interpretation as the foothold,second,to meet the irreversible damage of high-frequency dangerous behaviors to the complex legal interests as a legal benefit protection requirement,third,fully consider the systematic revision of the criminal law and other departmental laws,maintain the openness and modesty of the criminal law,fourth,the application path of the principle of reasonable development proportionality in the criminal law,explore the establishment of a system of misdemeanors and minor punishments,and fully relax the constraints for the pre-development of criminal law intervention.